Prior to the passage of the Fishery Conservation and Management Act of 1976, the United States only controlled fisheries within 12 miles of its shores. Beyond the 12-mile line, fleets of foreign fishing vessels, from a number of nations, engaged in unregulated fisheries for cod, flounder, herring, squid, mackerel and a host of other species. Many such vessels were big catcher-processor ships that were capable of catching, cleaning, packaging and flash-freezing large quantities of fish for shipment back to Europe or Asia.

At the time, U.S. fishermen operated smaller, older boats than their foreign competitors, and found themselves being pushed off their traditional grounds by the foreign vessels. In addition, foreign vessels were able to harvest so many fish that, in the absence of regulation, they began to drive down the number of fish that were available to boats sailing from U.S. ports.

By the early 1970s, efforts to push the foreign boats farther offshore began to gain momentum. Both recreational and commercial fishermen gave increasing support to what was commonly being called the “200-mile Limit Law.” Still, it took many years of negotiation to craft a bill that could pass both houses of Congress and be signed into law.

Early problems

The law, as passed in 1976, effectively Americanized fisheries extending to the outer edge of the United States’ Exclusive Economic Zone, which was generally 200 miles from shore. In a few areas, where the continental shelf extends out beyond the EEZ, federal law gave the United States jurisdiction over fisheries out to the edge of the continental shelf.

In addition, United States fishermen were very aware of the fact that their boats were older, and rigged with less sophisticated equipment, than the foreign vessels fishing off America’s shores. As a result, the Fishery Conservation and Management Act contained a number of provisions that allowed fishermen to finance new, larger and more sophisticated vessels, which were capable of finding and catching larger quantities of fish.

At the same time, the law, despite its name, was not really crafted to conserve and manage fish populations. The biggest problem was that it defined “optimum yield” as “the maximum sustainable yield from the fishery, as modified by any relevant economic, social or ecological factor.” While that sounded reasonable in theory, in practice it provided the various fishery management councils with a loophole that let them perpetuate overfishing. For a long time, the Councils and NOAA Fisheries regularly tolerated harvests that exceeded the maximum sustainable yield for the fishery by justifying such excesses on economic grounds.

As a result, while the law ended overfishing by foreign boats, it was merely replaced by overfishing by American boats, and fish stocks continued their decline. By the early 1990s, declining stocks were causing real harm to both the commercial and recreational fishing industries, and fishermen were asking Congress to fix federal fisheries law.

Congress and the courts offer solutions

In response to the original law’s failure to address conservation concerns, Congress eventually passed the Sustainable Fisheries Act of 1996, which marked a turning point for federal fisheries management. For the first time, overfishing was prohibited, and overfished stocks had to be rebuilt within a time certain—no more than ten years, unless biology or international agreements made a ten-year rebuilding period impossible.

At first, the regional fishery management councils didn’t take the new law seriously. The Mid-Atlantic Fishery Management Council adopted a summer flounder management plan that only had a 17% chance of preventing overfishing. And that’s where the courts came in.

A conservation group, the Natural Resources Defense Council, sued the Department of Commerce, arguing that the summer flounder plan failed to meet the requirements of the Sustainable Fisheries Act. The court agreed.

In a landmark decision, Natural Resources Defense Council v. Daley, the court noted, “Only in Superman Comics’ Bizarro world, where reality is turned upside down, could the [National Marine Fisheries] Service reasonably conclude that a measure that is at least four times as likely to fail as to succeed offers a ‘fairly high level of confidence.’” The court went on to set a new standard: A fishery management plan had to have at least a 50% chance of achieving its goals if it is to meet the demands of the law.

With that new standard set, fishery management councils began to draft management plans that actually worked. Stocks of fish began to recover. However, the recovery was not consistent on every coast. Some councils were more successful than others.

The Mid-Atlantic Fishery Management Council, for example, established realistic catch limits for all of its stocks, and eventually reached a point where none of the stocks under its jurisdiction were either overfished or subject to overfishing. But just to its north, the New England Fishery Management Council was having far less success; it refused to set hard annual quotas, and instead tried to manage through alternate measures such as trip limits and restrictions on days at sea. Such efforts were ineffective; few stocks were showing significant signs of recovery, while some, such as the Georges Banks and Gulf of Maine stocks of cod, continued to decline.

Thus, in 2006, the law that had, by then, become known as the Magnuson-Stevens Fishery Conservation and Management Act was changed again. One of the most significant amendments required the regional fishery management councils to establish annual catch limits for every stock under management. Alternative management measures, where they still existed, would be set aside for hard quotas. In addition, fisheries that exceeded such quotas would, for the first time, be held accountable; such “accountability measures” would give both recreational and commercial fishermen reason to support regulations that would help assure that overfishing didn’t occur.

Where we are today

Although it is not strictly required by law, Magnuson-Stevens is typically reauthorized about every ten years. Such reauthorization normally takes the form of amendments that identify and try to correct flaws in the existing law.

Historically, reauthorizations have made the law a better tool to assure the conservation and proper management of living marine resources. However, in recent years, that has changed.

Annual catch limits, accountability measures, prohibitions on overfishing and requirements to rebuild overfished stocks have benefitted America’s fish and America’s fishermen. About 40 once-overfished stocks have been rebuilt thanks to the Magnuson-Stevens Act.

However, hard quotas and accountability measures often have economic impacts, and assuring the long-term health of fish stocks often involves short-term sacrifice… Sacrifice that some members of the recreational and commercial fishing industries aren’t willing to make.

Thus, ever since Natural Resources Defense Council v. Daley was decided, and regional fishery management councils began drafting fishery management plans that placed real restrictions on fishing activity, there have been calls to add additional “flexibility” into the law.

“Flexibility,” in that context, means weakening the current provisions of Magnuson-Stevens, so that overfishing might be tolerated for some period of time, and overfished stocks might not have to be promptly rebuilt.

On the other hand, conservation advocates have argued that the law should be amended in a way that places less emphasis on so-called “single-species” management of recreationally and commercially important species, and places greater emphasis on maintaining and managing healthy, intact ecosystems, where not only the economically important species, but also the biologically and ecologically important components, are managed in a way that benefits the unified whole.

Thus, the battle lines of the current Magnuson-Stevens reauthorization debate have been drawn. Conservation advocates are seeking to expand the law’s success in single-species management in a way that would enhance the health of entire ecosystems, while some industry groups are seeking to shift the law’s emphasis away from rebuilding and maintaining healthy fish stocks toward its pre-1996 goals of emphasizing shorter-term economic benefits to the fishing industry.

Bills promoting the latter course have already been introduced in Congress. It is impossible to predict, at this time, which side will prevail.